Native American First Amendment Sacred Lands Defense: An Exercise in Judicial Abandonment

Transcription

1 Missouri Law Review Volume 54 Issue 3 Summer 1989 Article 10 Summer 1989 Native American First Amendment Sacred Lands Defense: An Exercise in Judicial Abandonment John Gillingham Follow this and additional works at: Part of the Law Commons Recommended Citation John Gillingham, Native American First Amendment Sacred Lands Defense: An Exercise in Judicial Abandonment, 54 Mo. L. Rev. (1989) Available at: This Note is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized administrator of University of Missouri School of Law Scholarship Repository.

2 Gillingham: Gillingham: Native American First Amendment NATIVE AMERICAN FIRST AMENDMENT SACRED LANDS DEFENSE: AN EXERCISE IN JUDICIAL ABANDONMENT Lyng v. Northwest Indian Cemetery Protective Ass'n' INTRODUCTION In Lyng v. Northwest Indian Cemetery Protective Ass'n, the Court upheld the government's right to build a road and harvest timber on land considered sacred by three American Indian tribes. 2 The Court's action in Lyng appears to effectively preclude the possibility of future suits against the government by American Indian 3 plaintiffs attempting to enjoin destruction of sacred lands. 4 Unfortunately, the utility of the road and the value of the timber were negligible when compared to the potentially devastating effect upon the religion and culture of the tribes. 5 Despite the obvious disparity between the competing irterests, the court stated that even if "the G-O road will 'virtually destroy the Indians' ability to practice their religion,' the Constitution simply does not provide a principle that could justify upholding respondents' [Indians'] legal claims." '6 Native Americans have appealed to the legislature 7 and the judicial system' in efforts to protect their religious tradition and cultural heritage S. Ct (1988). 2. Lyng v. Northwest Indian Cemetery Protective Ass'n, 108 S. Ct. 1319, 1330 (1988) (Native Americans affected by this litigation are from the Yurok, Karok and Tolowa tribes). 3. American Indian, Native American and Indian are employed synonymously throughout this Note. 4. Lyng v. Northwest Indian Cemetery Protective Ass'n, 108 S. Ct (1988). 5. Northwest Indian Cemetery Protective Ass'n v. Peterson, 565 F. Supp. 586, (N.D. Cal. 1983), aff'd in part and vacated in part, 764 F.2d 581 (9th Cir. 1985), aff'd in relevant part, 795 F.2d 688 (9th Cir. 1986), rev'd sub nom. Lyng v. Northwest Indian Cemetery Protective Ass'n, 108 S. Ct (1988). 6. Lyng, 108 S. Ct. at (citation omitted). 7. See infra notes and accompanying text. 8. See Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165 (1977); Cole v. Flick, 758 F.2d 124 (3rd Cir.), cert. denied, 474 U.S. 921 (1985); Tetrud Published by University of Missouri School of Law Scholarship Repository,

3 Missouri Law Review, Vol. 54, Iss. 3 [1989], Art MISSOURI LAW REVIEW [Vol. 54 The sacred land cases 9 are of paramount importance to American Indian religious practices as the sites in question are not merely traditional gathering points; the land represents a physical embodiment of the Indian religion.' 0 Destruction or alteration of the sacred land destroys a vital aspect of the religion and the cultural underpinnings of Indian society." Sacred land cases call into question the scope of traditional first amendment free exercise analysis. This note will focus upon the development of this analysis within and outside of the sacred lands context and the "coercion/penalty limitation" which was firmly embedded in the analysis as a result of the Lyng decision. DEVELOPMENT AND APPLICATION OF FREE EXERCISE CLAusE ANALYSIS The Free Exercise Clause "Congress shall make no law... prohibiting the free exercise [of religion]... "12 "[T]he purpose [of the religion clause] was to state an objective, not to write a statute."' 3 The objective was one of unqualified government v. Burns, 522 F.2d 357 (8th Cir. 1975); New Rider v. Board of Educ., 480 F.2d 693 (10th Cir.), cert. denied, 414 U.S (1973); Sample v. Borg, 675 F. Supp. 574 (E.D. Cal. 1987); United States v. Billie, 667 F. Supp (S.D. Fla. 1987); Indian Inmates v. Gunter, 660 F. Supp. 394 (D. Neb. 1987), aff'd, 857 F.2d 463 (1988); Pollock v. Marshall, 656 F. Supp. 957 (S.D. Ohio 1987), aff'd, 845 F.2d 656, cert. denied, 109 S. Ct. 239 (1988); United States v. Thirty-Eight (38) Golden Eagles or Eagle Parts, 649 F. Supp. 269 (D. Nev. 1986), aff'd, 829 F.2d 41 (9th Cir. 1987); United States v. Abeyta, 632 F. Supp (D.N.M. 1986); Oneida Indian Nation v. Clark, 593 F. Supp. 257 (N.D.N.Y. 1984); Peyote Way Church of God, Inc. v. Smith, 556 F. Supp. 632 (N.D. Tex. 1983); People v. Woody, 61 Cal. 2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964). 9. Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983), cert. denied, 464 U.S (1984); United States v. Means, 627 F. Supp. 247 (D.S.D. 1985), rev'd, 858 F.2d 404 (1988); Inupiat Community v. United States, 548 F. Supp. 182 (D. Alaska 1982), aff'd, 746 F.2d 570 (9th Cir. 1984), cert. denied, 474 U.S. 820 (1985); Crow v. Gullet, 541 F. Supp. 785 (D.S.D. 1982), aff'd per curiam, 706 F.2d 856 (8th Cir.), cert. denied, 464 U.S. 977 (1983); Sequoyah v. Tennessee Valley Auth., 480 F. Supp. 608 (E.D. Tenn. 1979), aff'd, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953 (1980); Badoni v. Higginson, 455 F. Supp. 641 (D. Utah 1977), aff'd, 638 F.2d 172 (10th Cir. 1980), cert. denied, 452 U.S. 954 (1981). 10. See A. HULTKRANTZ, BELIEF AND WORSIP IN NATrIvE NORTH AmERICA (C. Vescey ed. 1981); A. HULTKRANTZ, THE RELIGIONS OF THE AMERICAN INDIANS (M. Setterwall trans. 1979) 11. See Sequoyah, 620 F.2d at 1160 (injuries involved "destruction of 'sacred sites, medicine gathering sites, holy places and cemeteries...[and also encompassed] irreversible loss to the culture and history of the plaintiffs."'). See also Stambor, Manifest Destiny and American Indian Religious Freedom: Sequoyah, Badoni and the Drowned Gods, 10 Am. INDINr L. REv. 59, (1982); Note, Native Americans and the Free Exercise Clause, 28 HASTINGS L.J. 1509, 1510 (1977) U.S. CONST. amend. I. 13. Waltz v. Tax Comm'n, 397 U.S. 664, 668 (1970). 2

4 1989] Gillingham: Gillingham: Native American First Amendment JUDICIAL ABANDONMENT neutrality concerning the religious practices and beliefs of all citizens.' 4 This principle has been inherently easier to profess than to apply given the myriad of conflicting religious interests in our society. The Supreme Court has attempted to formulate an analytical framework capable of protecting the government's ability to independently and efficiently conduct its affairs, while at the same time insuring each individual's right to free expression of religious beliefs. Originally construed to cover only the right to hold one's chosen religious beliefs, 5 the free exercise clause now protects an individual's right to act in conformity with those beliefs.'" Therefore, when implementation of government policy serves to constrain one's ability to express a particular form of worship, that individual may invoke constitutional protections. Religious beliefs that do not conform to the traditional praxis of mainstream religions are afforded the same protection as more established faiths.' 7 The Supreme Court has clearly stated that "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit first amendment protection."' 8 This proclamation theoretically guarantees that the narrowly tailored piety of "accepted" religions will not be used to characterize non-mainstream religions as philosophy and, therefore, outside the ambit of the Constitution. 19 Finally, it is important to note three premises that apply to the following discussion. First, constitutional protection is not denied because the burden 14. Thomas Jefferson's view of the first amendment as "a wall of separation between Church and State" reflects this notion of the government's detachment from the affairs of religion. 16 THE WarrnNGs OF THomAS JEFFERSON 282 (A. Libscomb ed. 1904). 15. The Supreme Court illustrated this restrictive stance in a Mormon polygamy case where it stated: Plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Reynolds v. United States, 98 U.S. 145, (1878). 16. Cantwell v. Connecticut, 310 U.S. 296, (1940). Protection of the right to act, though recognized, is not absolute. The Supreme Court explained: [T]he Amendment embraces two concepts, freedom to believe and freedom to act. The first is absolute but,... the second cannot be. Conduct remains subject to regulation for the protection of society... In every case the power to regulate must be so exercised as not, on attaining a permissible end, unduly to infringe the protected freedom. Id. 17. Despite this proclamation, lower federal courts have encountered difficulty understanding the central role that sacred lands play in Native American religious practice. See infra notes and accompanying text. 18. Thomas v. Review Bd., 450 U.S. 707, 714 (1981). 19. Thomas, 405 U.S. at (confirmed that first amendment protection attaches to religious, not philosophical beliefs). Published by University of Missouri School of Law Scholarship Repository,

5 Missouri Law Review, Vol. 54, Iss. 3 [1989], Art MISSOURI LAW REVIEW [Vol. 54 placed upon the plaintiff is "the denial of or placing of conditions upon a benefit or privilege." 20 Second, the free exercise of religion is safeguarded when the alleged infringement occurs on or involves public property. 21 Third, the free exercise clause is applicable to the states through the fourteenth amendment.y Free Exercise Clause Analysis The free exercise analysis was articulated and subsequently refined in Sherbert v. Verner2 and its progeny. 24 Under this analysis the initial obligation fails upon the plaintiff to establish that an action or policy of the government has burdened " a sincerely held 26 religious belief. 27 Once this prima facie case is established,2 the burden shifts to the government to show that the infringement is justified by a "compelling state interest" that cannot be implemented by any less restrictive means Sherbert v. Verner, 374 U.S. 398, 404 (1963). Sherbert provided an extensive list of cases addressing invalidated conditions. Id. at 407 n A federal district court in South Dakota stated: Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thought between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. United States v. Means, 627 F. Supp. 247, 257 (D.S.D. 1985), rev'd, 858 F.2d 404 (1988) (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)). 22. See Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203 (1948); Cantwell v. Connecticut, 310 U.S. 296 (1940). 23. Sherbert v. Verner, 374 U.S. 398, 405 (1963). 24. See Widmar v. Vincent, 454 U.S. 263 (1981); Thomas v. Review Bd. of Indiana Employment See. Div., 450 U.S. 707 (1981); Wisconsin v. Yoder, 406 U.S. 205 (1972). 25. See School Dist. v. Schempp, 374 U.S. 203, 223 (1963). 26. See United States v. Ballard, 322 U.S. 78 (1944) (the judiciary lacks the capacity to discern the truth of a religious belief but can entertain whether the belief was sincerely held). 27. Given the Court's professed inability to adequately judge the truth of a religious belief, it follows that the courts are wary of classifying an alleged religious belief as philosophy and, therefore, unprotected by the first amendment. The Court has been very liberal in accepting a particular belief as religiously based. See infra text accompanying notes discussing the beliefs of Stephen Roy in Bowen v. Roy, 476 U.S. 693 (1986). See, e.g., Yoder, 406 U.S. at (specified that the beliefs must be "rooted in religion"). 28. See infra notes and accompanying text for additional detail on the requirements for establishing a prima facie case based on the free exercise clause. See also L. TamE, ArwaicAN CONsrTruIoNAL LAw (2d ed. 1988). 29. Sherbert, 374 U.S. at 403 (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)). Compelling state interest is the terminology predominantly used. "Compelling" is understood to mean "only those interests of the highest order." Yoder, 4

6 Gillingham: Gillingham: Native American First Amendment JUDICIAL ABANDONMENT Without additional constraints, this framework would produce a plethora of lawsuits from diverse religious groups claiming government infringement of their respective religious beliefs. Accordingly, the Supreme Court has narrowed the category of government behavior that is actionable under the first amendment. 30 The Lyng Court, in a five-to-three decision, 3 ' confirmed that only government action which either coerces, directly or indirectly, 32 or penalizes 33 the exercise of religion will be afforded first amendment protection. The Indians' inability to meet this threshold criterion precluded further inquiry into the merits of their case. The harsh results in Lyng and the potential for objectionable outcomes in other contexts suggest the need for closer scrutiny of the coercion/penalty 34 component of the free exercise analysis. The Coercion/Penalty Limitation In most instances, the coercion/penalty limitation is functionally employed to confine first amendment protection to those cases in which the "government interacts, or refuses to interact, with believers. ' 3 5 Coercion occurs when the government interacts with individuals by compelling behavior repugnant to religious beliefs 36 or by outlawing certain religious 406 U.S. at 215. If the government establishes a compelling interest, it has an obligation to prove that it serves the interest in such a way as to minimize the adverse impact on persons presenting valid free exercise claims. If the government can accommodate the interest in a less intrusive manner, then the constitution requires that the government do so. See, e.g., Sherbert, 374 U.S. at (citations omitted) (although a state has a compelling interest "[it] would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would [satisfy the interest] without infringing First Amendment rights."). 30. See infra text accompanying notes regarding the coercion/penalty limitation. 31. Lyng, 108 S. Ct. at 1321 (Justice Kennedy did not participate in the decision. Justice Brennan filed a scathing dissent in which Justices Marshall and Blackmun joined). 32. Id. at Previous Supreme Court free exercise cases have used similar terminology. The Court coined the "indirect" language and solidified the application of first amendment protection to this area of government action in Sherbert. 33. Id. Justice O'Connor used "penalty" to denote those forms of government action that would place "the same kind of burden upon the free exercise of religion as would a fine imposed." Sherbert, 374 U.S. at The coercion/penalty language used in Lyng is somewhat redundant assuming that both indirect and direct coercion are implicit in the coercion label. Drawing a distinction between penalization and indirect coercion is artificial as both represent identical forms of government action or inaction that may trigger a free exercise claim. Nevertheless, use of these terms in Lyng indicates they are the current terms of art for describing potentially actionable government behavior. 35. L. TRiNE, supra note 28, at See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972) (established a requirement that Amish adolescents attend school until sixteen years old). Published by University of Missouri School of Law Scholarship Repository,

7 Missouri Law Review, Vol. 54, Iss. 3 [1989], Art. 10 MISSOURI LAW REVIEW [Vol. 54 practices." Religious beliefs are penalized when benefits such as unemployment or welfare benefits are withheld because practitioners refuse to engage in acts proscribed by their religion, and completion of these acts is a prerequisite to qualification for the benefits. A. Coercion Wisconsin v. Yoder illustrates government conduct compelling practitioners to act contrary to their religious convictions. 8 In Yoder, Amish parents were convicted of violating Wisconsin's compulsory school attendance statute 9 when they refused to allow their children to attend public school beyond the eighth grade. 4 0 Expert witnesses testified that participation in secondary education would subject impressionable Amish adolescents to a world view anathema to Amish beliefs. 41 Therefore, the Amish were 37. See, e.g., Reynolds v. United States, 98 U.S. 145 (1878) (upheld a law prohibiting bigamy even though it conflicted with Mormon religious practices) U.S. 205 (1972). 39. Wis. STAT (1969). Pertinent sections provide: (1) (a) Unless the child has a legal excuse or has graduated from high school, any person having under his control a child who is between the ages of 7 and 16 years shall cause such child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which such child should be enrolled is in session until the end of the school term in which he becomes 16 years of age. (3) This section does not apply to any child who is not in proper physical or mental condition to attend school, to any child exempted for good cause by the school board of the district in which the child resides... (5) Whoever violates this section... may be fined not less than $5 nor more than $50 or imprisoned not more than 3 months or both. Id. (emphasis added). 40. Yoder, 406 U.S. at Id. at Relevant testimony was: Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence... The high school tends to emphasize intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, and social life with other students. Amish society emphasizes informal learning-through-doing; a life of "goodness," rather than a life of intellect; wisdom, rather than technical knowledge; community welfare rather than competition; and separation from, rather than integration with, contemporary worldly society. [.. [High school] takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life [when they] must acquire Amish attitudes favoring manual work and self-reliance

8 Gillingham: Gillingham: Native American First Amendment 1989] JUDICIAL ABANDONMENT 783 forced to either imperil the spiritual development of their youth, and arguably threaten the continued viability of their religion, or suffer prosecution by the state. 42 The Court noted that "[t]he impact of the compulsoryattendance law on respondents' practice of the Amish religion was not only severe, but inescapable, for the Wisconsin law affirmatively compelled them, under threat of criminal sanction, to perform acts at odds with fundamental tenets of their religious beliefs." 43 By enacting a statute that required Amish adolescents to participate in an environment hostile to their beliefs, the State of Wisconsin aided the Amish in meeting the threshold criterion. This affirmative state action represented government behavior sufficient to meet the coercion requirement. Having satisfied the coercion requirement, the Amish were permitted to establish that a sincere" religious belief was burdened 45 by the statute. Consequently, Wisconsin had to establish that compulsory school attendance was a compelling state interest. 46 The Court recognized that effective education of citizens is a profoundly important state interest. 47 The majority reasoned, however, that granting an exception to the Amish would not significantly threaten that goal because the Amish "system of learning-bydoing was an 'ideal system' of education in terms of preparing Amish children for life as adults in the Amish community The Amish were able to show that a state statute coerced behavior damaging to their religious tenets, and the Court carved out an exception to the statute whereby Amish youth in Wisconsin were no longer required to attend public school beyond the eighth grade. 4 9 Enforcement of a statute, regulation, or ordinance which proscribes behavior considered necessary for the meaningful practice of a religion imposes a coercive restraint upon the free exercise of that religion. In Reynolds v. United States 50 however, the Mormon practice of polygamy was outlawed even though marriage to a second wife, in certain circumstances, was an established tenet of the Mormon church. Reynolds affirmed that the government may prohibit activity considered contrary to the interests of society even if the behavior is central to and sanctioned by a particular religious body: [P]lural marriages should not be allowed. Can a man excuse his practices to the contrary because of his religious beliefs? To permit this would be to make the professed doctrines of religious belief superior to the law of 42. Id. at Id. 44. Id. at Id. at , See supra note Yoder, 406 U.S. at Id. at Id. at 234. Published 50. by University 98 U.S. 145, of Missouri (1878). School of Law Scholarship Repository,

9 Missouri Law Review, Vol. 54, Iss. 3 [1989], Art. 10 MISSOURI LAW REVIEW [Vol. 54 the land, and in effect to permit every citizen to become a law unto himself." The government's ability to proscribe practices otherwise legitimate through religious traditions provides another example of a genre of cases falling under the coercion rubric. B. Penalty Supreme Court cases recognizing first amendment protection where religious beliefs are penalized by government policy are grounded in the precedents set in Sherbert v. Verner.1 2 Sherbert, a Seventh-day Adventist, was refused unemployment compensation provided for by state act 53 when she refused to work on Saturdays. 4 Seventh-day Adventists believe that the Bible designates Saturday as the Sabbath and this day, therefore, is to be set aside as a time for rest and worship. Saturday labor was not required when Sherbert applied for her position but administrative changes two years later mandated work on Saturday for all shifts." Sherbert conscientiously pursued employment both in and outside of her chosen field 51. Id. at U.S. 398 (1963). 53. Id. at 400. The South Carolina statute, S.C. CODE to (1962), provided in relevant part: An unemployed insured worker shall be eligible to receive benefits with respect to any week only if the Commission finds that: (3) He is able to work and is available for work Any insured shall be ineligible for benefits: (2")... If the Commission finds that he has been discharged for misconduct connected with his most recent work prior to filing... (3).'.. (a) If the Commission finds that he has failed, without good cause, (i) either to apply for available suitable work, when so directed by the employment office or the Commission, (ii) to accept available suitable work when offered him by the employment office or the employer... [then] ineligibility shall continue for a period of five weeks... as determined by the Commission according to the circumstances in each case (b) In determining whether or not any work is suitable for an individual, the Commission shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation and the distance of the available work from his residence. 54. Sherbert, 374 U.S. at Id. at 399 n.l. Persons holding this belief are called Sabbatarians. A minority of Christian sects and the Jewish faith observe Saturday as the Sabbath. 8

10 Gillingham: Gillingham: Native American First Amendment 1989] JUDICIAL ABANDONMENT but efforts to secure a position that did not conflict with her Sabbath were unavailing.1 6 The court indicated: [Sherbert was required to] choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.-, Given Sherbert's dilemma, the Court recognized that "condition[ing] the availability of benefits upon this appellant's willingness to violate a principle of her religious faith effectively penalizes the free exercise of her constitutional liberties." 58 The condition placed upon Sherbert penalized her for devotion to her beliefs. Thus, the Court proceeded with the standard free exercise analysis. The Court found that Sherbert's convictions were sincere and religiously based 59 and concluded that no compelling state interest justified denial of the unemployment benefits. 60 Similar results were obtained in Thomas v. Review Board 6 l Thomas, a Jehovah's Witness, was refused unemployment compensation because he voluntarily terminated his employment upon transfer to a division fabricating military hardware. Thomas claimed that his beliefs forbade participation in the construction of weaponry. 62 Relying heavily upon Sherbert, the Court confirmed: Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial. 63 Conditioning benefits upon Thomas' willingness to violate the tenets of his belief system is analogous to the penalty imposed upon Sherbert. The penalty, extant when the government refused to confer benefits upon Thomas, brought Thomas' claim within the purview of first amendment protection. 56. Id. at 399 n Id. at Id. at 406 (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)) (emphasis added). But see Braunfeld v. Brown, 366 U.S. 599 (1961) (Jewish plaintiff argued that Sunday closing laws imposed an economic hardship on persons observing a Saturday Sabbath. Despite the penalty imposed, the Court found that the need to designate a uniform day of rest outweighed this objection). 59. Sherbert, 374 U.S. at Id. at U.S. 707 (1981). 62. Id. 63. Id. at Published by University of Missouri School of Law Scholarship Repository,

11 Missouri Law Review, Vol. 54, Iss. 3 [1989], Art. 10 MISSOURI LAW REVIEW [Vol. 54 In 1987 the Court addressed a Sabbatarian's right to collect unemployment benefits when religious conversion subsequent to employment conflicted with existing obligati6ns to work Saturdays.' The Court concluded that the "timing of Hobbie's conversion [was] immaterial... In Sherbert, Thomas, and the present case, the employee was forced to choose between fidelity to religious belief and continued employment... "65 Hobbie, confirming the precedent set in Sherbert and Thomas," stated that to determine whether a penalty is present the existence of a choice between work versus remaining faithful to one's beliefs rather than the time the choice became operative, is the dispositive factor. 67 This dilemma satisfied the threshold criteria necessary for the Court to proceed with the free exercise analysis. 68 APPLICATION OF FRiEE EXERCISE ANALYSiS TO NATIVE AmERCAN CLAIMS Courts have struggled to discern and consistently apply an appropriate free exercise analysis when dealing with infringements upon Native American religious practice. 6 9 There is little doubt that a significant factor contributing to this legal disarray is the judiciary's inability to relate to an unfamiliar cultural/religious framework. 0 Cultural myopia causes courts 64. Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987) (emphasis added). 65. Id. at Id. at Id. at Justice O'Connor asserted, "It is true that this Court has repeatedly held that indirect coercion or penalties of the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment." Lyng, 108 S. Ct. at Compare State v. Soto, 21 Or. App. 794, 537 P.2d 142 (1975) (sacramental.peyote use by Native Americans violates narcotics laws despite free exercise assertion) with People v. Woody, 61 Cal. 2d. 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964) (peyote use protected under first amendment). Compare Cole v. Flick, 758 F.2d 124 (3rd Cir. 1985) (American Indian held in custody was required to cut his hair to comply with prison regulations despite his religious beliefs) with Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975) (Indian inmate could wear long braids contrary to prison regulations, based on a first amendment challenge). The district court in Badoni v. Higginson, 455 F. Supp. 641 (D. Utah 1977), rejected a sacred land claim because the Indians lacked a property interest. Subsequent decisions have invalidated this stance. 70. See Note, Religion: The First Amendment and the American Indian Religious Freedom Act of 1978, 10 AmR. INDIAN L. REv. 151, 153 (1983); Note, The First Amendment and the American Indian Religious Freedom Act: An Approach to Protecting Native American Religion, 71 IowA L. Rv. 869, 869 (1986); Note, American Indian Sacred Religious Sites and Government Development: A Conventional Analysis in an Unconventional Setting, 85 MICH. L. REv. 771, (1987); Note, Indian Religious Freedom and Governmental Development of Public Lands, YALE L.J. 1447, 1464 (1985). 10

12 1989] Gillingham: Gillingham: Native American First Amendment JUDICIAL ABANDONMENT to characterize legitimate Indian claims as "non-religious"', or as infringements that are not "central ' 72 to the practice of their religion. In Sequoyah v. Tennessee Valley Authority, 3 Cherokee Indians attempted to enjoin the completion of a dam on the Little Tennessee River which would flood the "sacred homeland" of the tribe. 74 The engulfing waters would destroy "sacred sites, medicine gathering sites, holy places and cemeteries [and would] disturb the sacred balance of the land... -7" The court found that the Indians' claims "demonstrate 'personal preference' rather than convictions 'shared by an organized group.' ' 76 Further, the court found that flooding sacred lands would "damage... tribal and family folklore and traditions, more than particular religious observances These findings prevailed despite the court's recognition of the validity of the religion and the sincerity of the Indians' belief. 78 Sequoyah's free exercise test allows a first amendment challenge if the Indians succeed in establishing that the sacred land in jeopardy is "central" or "indispensable" to the exercise of the religion. 79 If the plaintiffs meet this threshold requirement, the next step is to "balance the opposing interests of the parties or to determine whether the government's interest in proceeding... is compelling."' 80 It remains unclear whether the court of appeals was advocating a standard balancing test or requiring the government to come forward with a compelling interest. This latter segment of the test was never employed in Sequoyah because the court determined that the plaintiffs did not pass the central/indispensable criteria. Badoni v. Higginson, also decided in 1980, presented another Native American sacred land free exercise challenge." Navajo Indians in Utah attempted to persuade the government to maintain the Glen Canyon Dam reservoir at a lower level to prevent flooding of portions of their sacred 71. Addressing the nature of sacred Indian land in Tennessee, the Sixth Circuit stated, "These affidavits appear to demonstrate 'personal preference' rather than convictions 'shared by an organized group.'... It is damage to tribal and family folklore and traditions, more than particular religious observances, which appears to be at stake." Sequoyah v. Tennessee Valley Auth., 620 F.2d 1159, 1164 (6th Cir. 1980). 72. See Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983); Sequoyah v. Tennessee Valley Auth., 620 F.2d 1159 (6th Cir. 1980); United States v. Means, 627 F. Supp. 247 (D.S.D. 1985), rev'd, 858 F.2d 404 (1988); Crow v. Gullet, 541 F. Supp. 785 (D.S.D. 1982) F.2d 1159 (6th Cir. 1980). 74. Id. at Id. 76. Id. at Id. 78. Id. at Id. at Id. at 1165 (emphasis added). 81. Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980). Published by University of Missouri School of Law Scholarship Repository,

13 Missouri Law Review, Vol. 54, Iss. 3 [1989], Art. 10 MISSOURI LAW REVIEW [Vol. 54 land.1 2 The waters of Lake Powell covered certain sites considered to be incarnations of Navajo gods. 83 The Navajos contended that the existence of the reservoir effectively negated the efficacy of ceremonies performed for the health and protection of the tribe. 4 The appellate court presented a "two-step process" in Badoni, for analyzing free exercise claims, stating that it must "first determine whether government action create[d] a burden."" 5 The court proceeded to outline the nature of a burden as requiring the "coercive effect of [an] enactment as it operates against... the practice of religion. ' 86 Additionally, the Badoni court required the plaintiff to establish that the belief was of a truly religious origin and sincerely held. 87 The second prong of the analysis required a compelling state interest. 88 Instead of proceeding through the analysis as proposed, the court directed its attention to the second prong of the analysis and found a compelling state interest. 89 This finding allowed the court to circumvent "the question whether the government action involved infringe[d] plaintiffs' free exercise of religion." 9 The test as enumerated provides some insight into the analysis the court considered appropriate, even though it was not sequentially applied. In Wilson v. Block, 91 a federal appellate court employed the Sequoyah centrality/indispensability burden requirement and found no cognizable free exercise burden. Wilson involved the expansion of an existing ski resort in the San Francisco Peaks of Arizona, 92 which was land considered sacred by Navajo and Hopi tribes. 93 The Navajo believe that the Peaks are a living "spiritual being or god, with various peaks forming the head, shoulders, and knees... while the trees, plants, rocks, and earth form the 82. The Navajos considered four religious sites to be sacred: a sacred spring, cave, prayer site and a huge sandstone arch known as the Rainbow Bridge. The spring, cave and prayer site were completely submerged below the reservoir waters. Rainbow Bridge, measuring 309 feet high with a 178 feet span, is projected to lose approximately 46 feet of its base to the waters of Lake Powell. Id. at Id. at 177 (since the Navajo consider these sites to be incarnate deities, they believe the reservoir waters drowned their gods. 84. Id. at Id. at 176 (emphasis added). 86. Id. 87. Id. 88. Id. at Id. at Id. at 177 n F.2d 735 (D.C. Cir. 1983). 92. Id. at 739. The expansion entailed clearing of fifty acres for new ski runs, construction of a new day lodge, improvement of restroom facilities, reconstruction of existing chair lifts, construction of three new lifts and paving and widening of the Snow Bowl road. Id Id. at

14 Gillingham: Gillingham: Native American First Amendment 1989] JUDICIAL ABANDONMENT skin." 94 They believe that many deities reside in the Peaks, and the sacred mountains are viewed as one boundary of the Navajo homeland. Both tribes maintain shrines in the Peaks, and members collect herbs and hunt for wildlife in these mountains for use in ceremonies at the shrines. 95 After finding that the tribe's beliefs were sincerely held and religiously based, the Wilson court, nevertheless, confirmed Sequoyah's central or indispensable burden test by asserting, "If the plaintiffs cannot demonstrate that the government land at issue is indispensable to some religious practice, whether or not central to their religion, they have not justified a First Amendment claim." 96 The court in Wilson added a new dimension to the indispensability criterion by requiring that "plaintiffs seeking to restrict government land use in the name of religious freedom must, at a minimum, demonstrate that the government's proposed land use would impair a religious practice that could not be performed at any other site." ' 97 The court concluded that the area encompassing the fully developed facility, including the additional roads, ski lifts, and lodge, was minimal when compared to the total area of the Peaks, and therefore alternate sites could be utilized for conducting ceremonies and gathering items used in the rites. 98 The Indians inability to establish a recognized burden on their religious practices defeated their claim. 99 In the Indian sacred land cases, the federal courts effectively precluded attempts by Native Americans to preserve their sacred lands from destruction or alteration via government action. A compilation of all the components of the free exercise tests employed in sacred land cases, as propounded by the courts reads as follows: 1. Plaintiffs must establish that their beliefs are sincere. 2. Plaintiffs must show that the beliefs are religiously based. 3. Plaintiffs must show that the land in question is central and indispensable to the practice of their religion to the extent that the practice is incapable of being conducted elsewhere. 4. Plaintiffs must show that the government action significantly burdens their ability to practice their religion. Once plaintiffs construct this prima facie case, the government is required to either: 1. Come forward with a compelling state interest that may not be protected in any less restrictive manner, or 2. Weigh the relative strengths of the interests asserted. 94. Id. 95. Id. 96. Id. at Id. at 744 (emphasis added). 98. Id. 99. Id. at 745. Published by University of Missouri School of Law Scholarship Repository,

15 Missouri Law Review, Vol. 54, Iss. 3 [1989], Art. 10 MISSOURI LAW REVIEW [Vol. 54 This was the analysis for sacred land cases when Lyng came before the district court in California. Facts and Lower Court Treatment of Lyng The Yurok, Karok and Tolowa Indian tribes have conducted religious ceremonies since the early nineteenth century in an area known as the high country in northwestern California.'00 This land, located within the Blue Creek Unit 10 ' of Six Rivers National Forest, is sacred to the tribes and integral to their religious worship.'02 In 1981 and 1982 the Forest Service issued environmental impact statements indicating its intent to harvest timber and build a road through the high country. 03 In compliance with the American Indian Religious Freedom Act (AIRFA),' 0 the government consulted Indian religious leaders. Further, 100. Northwest Indian Cemetery Protective Ass'n v. Peterson (Northwest I), 565 F. Supp. 586, 591 (N.D. Cal. 1983), aff'd in part and vacated in part, 764 F.2d 581 (9th Cir. 1985), aff'd in relevant part, 795 F.2d 688 (9th Cir. 1986), rev'd sub nom. Lyng v. Northwest Indian Cemetery Protective Ass'n, 108 S. Ct (1988) Id. at 591. The Blue Creek Unit encompasses 67,500 acres, of which 31,000 are designated as a roadless area. A roadless area is "[a]n area of undeveloped Federal land within which there are not improved roads maintained for travel by means of motorized vehicles intended for highway use." Northwest Indian Cemetery Protective Ass'n v. Peterson (Northwest II), 764 F.2d 581, 583 n.l (9th Cir. 1985) (quoting FoREst SERVIcE MMAuAL 8260(B)(3)(a)(1)) Northwest 1, 565 F. Supp. at The sacred use and nature of the land was illuminated by explaining: Individuals hike into the high country and use "prayer seats" located at Doctor Rock, Chimney Rock, and Peak 8 to seek religious guidance or personal "power" through "engaging in emotional [and] spiritual exchange with the creator." Such exchange is made possible by the solitude, quietness, and pristine environment found in the high country. Certain key participants in tribal religious ceremonies such as the White Deerskin and Jump Dances (these dances provide the periodic "World Renewal" that is essential to the Indians' religious belief system) must visit the high country prior to the ceremony to purify themselves and to make "preparatory medicine." The religious power these individuals acquire in the high country lends meaning to these tribal ceremonies, thereby enhancing the spiritual welfare of the entire tribal community. Medicine women in the tribes travel to the high country to pray, to obtain spiritual power, and to gather medicines. They then return to the tribe to administer to the sick the healing power gained in the high country through the Brush and Kick Dances. Id. (citations omitted) (footnote included parenthetically) Northwest II, 764 F.2d at American Indian Religious Freedom Act of 1978, 42 U.S.C (1982). The Act provides: On and after August 11, 1978, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American 14

16 Gillingham: Gillingham: Native American First Amendment 1989] JUDICIAL ABANDONMENT the government commissioned a full study' 05 to determine the impact of the proposed development upon "cultural and religious sites in the area." "3d After considering all proposed routes, 1 7 the study concluded that the proposed road "would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples."' 0 8 The report strongly recommended against completion of the road. 1 9 The Forest Service disregarded the study's recommendation and decided to proceed with the road construction and logging operations. Following this, four American Indians, the State of California and various organizations filed suit to enjoin these activities."1 0 The district and appellate court held that the Government violated the Indians' first amendment rights."' Both courts found the Indians' belief that the high country was sacred to be sincerely held and religiously based.1 2 The centrality/ indispensability requirement was met; "For the Yurok, Karok, and Tolowa peoples, the high country constitutes the center of the spiritual world. No other geographic areas or sites hold equivalent religious significance for these tribes."" ' The final requirement of establishing a burden on the Indians' religious practice was found in the Forest Service's study that concluded "[i]ntrusions on the sanctity of the Blue Creek high Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites. Id. See also infra notes and accompanying text D. THEODORATUS, CULTURAL RESOURCES OF THE CHIMNEY ROCK SECTION, GASQUET-ORLEANS ROAD, Six RvERs NATIONAL FoREST (1979) Lyng, 108 S. Ct. at Northwest Indian Cemetery Protective Ass'n v. Peterson (Northwest III), 795 F.2d 688, 693 (9th Cir. 1986). The Forest Service presented nine routes for consideration. Id. The Court explained that "alternate routes that would have avoided the Chimney Rock area altogether were rejected because they would have required the acquisition of private land, had serious soil stability problems, and would in any event have traversed areas having ritualistic value to American Indians." Lyng, 108 S. Ct at Lyng, 108 S. Ct. at 1322 (quoting D. T-mODORATuS, supra note 105, at 182). The Chimney Rock section of the road would function to connect two longer segments of pavement. Upon completion, this 6.02 mile segment of the road would connect the towns of Gasquet and Orleans in northwest California. Northwest III, 795 F.2d at Lyng, 108 S. Ct. at Northwest r, 565 F. Supp. at Organizations and other individuals involved in the suit included: The Sierra Club, The Wilderness Club, California Trout, Siskiyou Mountains Resource Council, Redwood Region Audubon Society, Northcoast Environmental Center, and Timothy McKay and John Amadio, two Sierra Club members. Id. at Northwest II, 764 F.2d at Id. at Northwest I, 565 F. Supp. at 594. Published by University of Missouri School of Law Scholarship Repository,

17 Missouri Law Review, Vol. 54, Iss. 3 [1989], Art. 10 MISSOURI LAW REVIEW [Vol. 54 country are... potentially destructive of the very core of Northwest [Indian] religious beliefs and practices." 11 4 The Indians had met every criterion promulgated by previous courts addressing the sacred land issue. Accordingly, the next step of the analysis focused upon whether the government's interests in the logging and road construction were compelling and were instituted in the least restrictive manner."' The district court found that the interests claimed by the Forest Service were not "of sufficient magnitude to override the interest claiming protection under the free exercise clause The courts found that the existing sections of road provided adequate access to the area for Forest Service purposes and that the amount of lumber to be harvested from the high country was "a small fraction of the timber resources to be found in the entire Six Rivers National Forest Both courts issued permanent injunctions precluding road construction and logging in the high country." 8 These decisions represented the first successful sacred land defenses by Indian plaintiffs. Supreme Court Disposition and Rationale The Court in Lyng conceded that "too much disturbance of the [high country's] natural state would clearly render any meaningful continuation of traditional [religious] practices impossible."" 9 Yet, even if the government's action "will 'virtually destroy the Indian's capacity to practice their religion,"' the Constitution affords no protection for this incidental effect. 2 0 The majority justified this result by narrowly construing the government's action as neither coercing the Indians to act in a fashion contrary to their beliefs nor penalizing them by withholding benefits. In deciding Lyng, the Court principally relied upon the logic employed in Bowen v. Roy. 21 Roy, a descendent of the Abenaki tribe, "testified he had recently developed a religious objection to obtaining a social security number [for his daughter because he] believe[d] that technology [was] 'robbing the spirit of man." ' 22 The majority apparently upheld the sincere religious status of Roy's belief even though the belief purportedly was not 114. Id. at Id. at Id. at 592 (quoting Yoder, 406 U.S. 205, 214 (1972)) Id. at Id. at Lyng, 108 S. Ct Id. at U.S. 693 (1986) Id. at

18 1989] Gillingham: Gillingham: Native American First Amendment JUDICIAL ABANDONMENT held by a significant body of adherents, but rather was the product of Roy's "recent conversations with an Abenaki chief."' ' Welfare recipients, however, must supply a social security number to the state to qualify for welfare benefits.'z 4 The social security number is required to avoid fraudulent claims.' 2 1 Roy claimed this requirement prohibited the free exercise of his religion. 26 Success on the first amendment claim would have allowed Roy to dictate the accounting procedures by which his family received government relief. 27 The Court responded by stating: 123. Id. The Supreme Court did not scrutinize the religious foundation of Roy's belief as comprehensively as it had scrutinized similar beliefs in previous free exercise challenges. The Court noted in Yoder that: [I]f the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary, secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses. 406 U.S. 205, 216 (1972). Again in Yoder, the court emphasized that the claim presented was "not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living." Id. at 216. There is no evidence that Roy's beliefs were either the reflection of a composite belief system of an "organized group" or "intimately related" to his daily existence. The Court has traditionally drawn a distinction between philosophic and religious beliefs. Admittedly, this distinction has no clear line of demarcation. Given the Hobbie, Bowen and Lyng holdings, the Court is adopting a more liberal definition of what constitutes religious belief, especially when contrasted to the decision in Sequoyah v. Tennessee Valley Authority where damage to sacred land was designated as merely damage to folklore and traditions. 620 F.2d 1159, 1164 (6th Cir. 1980). The difficulty of distinguishing valid religious beliefs from those not "rooted in religion" has long been acknowledged by the Court. If the decision in Bowen and the language used in Hobble and Lyng are indicative, then one may assume that the Court will accept assertions that particular beliefs are religiously based, unless a contrary showing is clearly made. The Court appears, however, to have solidified its reluctance to designate a professed religious belief as personal philosophy rather than to have adopted a change of policy U.S.C. 602(a)(25)(A) (1982). The Aid to Families with Dependent Children (AFDC) program requires that "as a condition of eligibility under the plan, each applicant for or recipient of aid shall furnish to the State agency his social security account number...." Id. A similar prerequisite was enacted for receipt of relief through the Food Stamp program. 7 U.S.C. 2025(e) (1982). Roy had applied for and obtained welfare benefits through the AFDC and the Food Stamp programs. Bowen, 476 U.S. at Bowen, 476 U.S. at Id. at Id. Bowen's language reflected the fact that the plaintiff attempted to administratively dictate the method by which he could receive government benefits. Presumably such motivation does not tug at the Court's heartstrings. The Court stated, "Appellees may not use the Free Exercise Clause to demand government Published by University of Missouri School of Law Scholarship Repository,

19 Missouri Law Review, Vol. 54, Iss. 3 [1989], Art. 10 MISSOURI LAW REVIEW [Vol. 54 The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens... The Free Exercise Clause affords protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures.'2 The majority analogized Lyng to Bowen and determined that "[t]he building of a road or the harvesting of timber on publicly owned land cannot meaningfully be distinguished from the use of a Social Security number in [Bowen].' ' 29 The Indians' attempts to distinguish the cases were unavailing even though: [T]he social security number in [Bowen] could be characterized as interfering with Roy's religious tenets from a subjective point of view, where the government's conduct of "its own internal affairs was known to him only secondhand and did not interfere with his ability to practice his religion."... In this case, however, it is said that the proposed road will physically destroy the environmental conditions and the privacy without which the [religious] practices cannot be conducted. 3 0 Despite these dissimilarities, the Court found a sufficient nexus based on the fact that neither Bowen nor the Yurok, Karok or Tolowa Indians were coerced or penalized by government action. 3 1 Therefore, the Court's narrow reading of Lyng served to definitively incorporate the coercion/penalty limitation into free exercise clause analysis. LEGISLATIVE AcTION The Supreme Court stated in Lyng: The Constitution does not, and the courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere benefits, but only on their terms, particularly where that insistence works a demonstrable disadvantage to the Government in the administration of the programs," Id. at (emphasis added) Id. at (emphasis added) Lyng, 108 S. Ct. at The dissent found the majority's inability to distinguish these activities and, therefore, the cases "altogether remarkable." Id. at It further stated: In [Bowen], we repeatedly stressed the "internal" nature of the Government practice at issue: noting that Roy objected to "the widespread use of the social security number by the federal or state governments in their computer systems."... [W]e likened the use of such recordkeeping numbers to decisions concerning the purchase of office equipment... Federal landuse decisions, by contrast are likely to have substantial external effects that government decisions concerning office furniture and information storage obviously will not, and they are correspondingly subject to public scrutiny and public challenge in a host of ways that office equipment purchases are not. Id Id. at 1325 (emphasis added) (quoting Bowen, 476 U.S. at ) Id. 18

20 Gillingham: Gillingham: Native American First Amendment 1989] JUDICIAL ABANDONMENT religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent that it is feasible, is for the legislatures and other institutions. 13 The Court thus established that (1) the court system is unwilling to hear free exercise challenges by Indian plaintiffs seeking to protect sacred land from potentially destructive government action, and (2) the appropriate relief mechanism, "to the extent that it is feasible," lies with Congress.' 3 The American Indian Religious Freedom Act of 1978 (AIRFA) addresses the subject matter of Lyng. AIRFA professes to "protect and preserve for American Indians their inherent right of freedom to believe, express and exercise the traditional religions of American Indians... including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites Although seemingly on point, the courts have consistently held that the statute does not create any justiciable rights. 1 '1 Yet, on March 31, 1988, Senator Cranston of California introduced a bill to create such a justiciable right.' 36 Senate Bill 2250, an amendment to the AIRFA, was introduced with the express purpose of "ensur[ing] that Federal lands are managed in a manner that does not impair the exercise of traditional American Indian religion." '137 The initial draft of the bill stated: Sec. 3. (a) Except in cases involving compelling governmental interests of the highest order, Federal lands that have been historically indispensable to a traditional America [sic] Indian religion shall not be managed in a manner that would seriously impair or interfere with the exercise or practice of such traditional American Indian religion. (b) United States district courts shall have the authority to issue such orders as may be necessary to enforce the provisions of this section., 38 Section 3 (a) outlined the basic parameters of a framework designed to handle sacred land conflicts and 3 (b) provided Indian plaintiffs with 132. Id. at Id. Courts have traditionally provided an arena in which less powerful members of society have had the opportunity to be heard on equal footing with individuals wielding greater influence. Relegating the resolution of Native American claims to Congress distinctly disadvantages Indians due to Congress' status as the representative branch of the federal government. Given the small number of American Indians and their relative lack of political power, one might persuasively argue that Congress is an inadequate forum for the expression of Indian concerns U.S.C (1978) See, e.g., Lyng, 108 S. Ct. at Justice O'Connor stated, "Nowhere in the law is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights." Id CONG. REc. S3,633 (daily ed. March 31, 1988) (statement of Sen. Cranston) Id S. 2250, 100th Cong., 2nd Sess. (1988). Published by University of Missouri School of Law Scholarship Repository,